P.R.B.A. Corp. v. HMS Host Toll Roads, Inc., No. 15-1538 (3d Cir. Dec. 10, 2015).
A strip club placed advertising brochures in a display rack located in a plaza along the New Jersey turnpike. The private company that ran the plaza removed the brochures. The strip club has sued the plaza company, asserting that the plaza company violated its free-speech rights by removing the brochures.
But was the plaza company a state actor subject to the Fourteenth Amendment’s (and hence the First Amendment’s) constraints? Now, there’s more than one way that a private actor can become a state actor for purposes of the Fourteenth Amendment. Here, though, the strip club argues only that the plaza company was a state actor because it was “pervasively entwined” with the New Jersey Turnpike Authority. The Third Circuit finds no pervasive entwinement. At most, the plaza company had to pay a percentage of its sales income to the Turnpike Authority, and that’s not enough to become a state actor.
UPDATE (12/11/15): Bruce D. Greenberg, at his New Jersey Appellate Law blog, covers this case here.